Summary of 2004 Legislation

A SUMMARY OF LEGISLATION (2004)
PASSED BY THE GENERAL ASSEMBLY
AFFECTING THE CONNECTICUT SITING COUNCIL

The Connecticut General Assembly enacted several pieces of legislation in the 2004 Session that affect the Connecticut Siting Council.  That legislation is summarized below for review and consideration by persons who bring business before the Council and members of the public.

Please note that while the summaries and outlines that appear below are a good-faith attempt by the Council to capture the most significant and salient aspects of the relevant legislation, these summaries are not authoritative and should in no way be viewed as legal advice.  Indeed, the reader is cautioned that such legal advice may only be obtained as a result of personal consultation with an attorney.

The Council expresses special thanks to the Utilities and Regulated Industries Department of Wiggin and Dana, LLP, for permitting portions of their publication 2004 Utility Act Summary to be included herein. 

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Public Act No. 04-222

An Act Concerning the Preservation of the Family Farm and Long Island Sound.

Sections One through Four of this Act does not concern the utility industry.

Section Five of this Act, effective from passage, amends Conn. Gen. Stat. § 25-157, as amended by section 6 of Public Act 03-123 and section 1 of Public Act 03-148, to take into account amendments to Conn. Gen. Stat. §§ 25-157a to 25-157c, inclusive, and to extend for another year (for a total of three years) the moratorium on the consideration or decision by state agencies on certain applications relating to electric power line crossings, gas pipeline crossings or telecommunications crossings of Long Island Sound.  It also adds a provision by which applicants for such crossings may seek a waiver of the moratorium by submitting a petition to the chairpersons and ranking members of the joint standing committees of the General Assembly having cognizance of matters relating to energy and the environment, the chairman of the Siting Council, the chairperson of the Public Utilities Control Authority, the Commissioner of Environmental Protection, and any other state agency head with jurisdiction over the subject of the petition.  Such persons may grant a petition for a waiver by unanimous consent.

Section Six of this Act, effective July 1, 2004, amends Conn. Gen. Stat. § 29-194m as amended by section 2 of Public Act 03-236 and section 146 of Public Act 03-6 of the June 30 Special Session, to reflect amendments to Conn. Gen. Stat. §§ 26-212, 26-215 and 26-232.   It also provides that the Commissioner of Agriculture and Consumer Protection shall assess the owner of any facility that requires a certificate issued pursuant to Conn. Gen. Stat. § 16-50k, as amended, or that requires approval by the Federal Energy Regulatory Commission and that crosses any grounds of Long Island Sound within the jurisdiction of the state, an annual host payment fee of forty cents per linear foot for the length of such facility within the jurisdiction of the state.  The Commissioner of Agriculture and Consumer Protection must deposit seventy-five percent of the fee’s proceeds into the “expand and grow Connecticut agriculture account” established pursuant to section 8 of this Act and must transfer the remaining twenty-five percent to the Commissioner of Environmental Protection for deposit into the Environmental Quality Fund established pursuant to Conn. Gen. Stat. § 22a-2g, as amended by this Act.

Section Seven of this Act, effective July 1, 2004, amends Conn. Gen. Stat. §§ 22a-27g(b) to reflect amendments to Conn. Gen. Stat. §§ 22a-6, 22a-134e, 22a-135, 22a-148, 22a-150, 22a-174, 22a-174a, 22a-342, 22a-363c, 22a-372, 22a-379, 22a-409, 22a-430, 22a-449, 22a-454 to 22a-454c, inclusive, 22a-361 and 26-194.

Section Eight of this Act, effective July 1, 2004, is new and establishes an “expand and grow Connecticut agriculture account,” which is a separate, non-lapsing account within the General Fund for the deposit of funds received pursuant to Conn. Gen. Stat. § 26-194, as amended by this Act.  The Commissioner of Agriculture and Consumer Protection is authorized to make payments from the account to fund certain programs.

Public Act No. 04-226

An Act Concerning Telecommunications Coverage Plans.

Section One of this Act, effective from passage, is new and provides that on or before October 1, 2004, and annually thereafter, the chief elected official of each municipality shall file, annually, with the Siting Council, a report containing the location, type and height of each existing telecommunications tower and each existing and proposed antenna subject to local jurisdiction.

Section Two of this Act, effective from passage, is new and requires the Siting Council, on or before January 1, 2006, to develop, maintain and update quarterly a state-wide telecommunications coverage database, which shall be made available to the public through various specified means.  Upon request of a municipality, the Siting Council must supply any information in the database for preparation of a plan under section 3 of this Act, discussed below. (Link to PA 04-226 Database)

Section Three of this Act, effective from passage, is new and provides that on or after January 1, 2007 , each municipality may develop a municipal telecommunications coverage plan to consider certain information and comply with specified requirements.  At the request of a municipality, the Siting Council must provide technical assistance in preparing a plan.

Section Four of this Act, effective from passage, is new and provides that on or before September 1, 2006 , the Siting Council must develop a plan for state-wide telecommunications coverage and annually shall review and revise the plan as necessary.  The plan must include certain information and comply with certain specified requirements. (Link to CSC Telecommunications Plan)

Section Four also stipulates that telecommunications providers are required to provide the locations of non-tower antenna arrays serving cellular and PCS telephone operations to the Siting Council on or after April 1, 2005. This information is to be used solely in the preparation of the state-wide telecommunications plan the Council is required to develop.

Section Five of this Act, effective from passage, amends Conn. Gen. Stat. § 16-50v to provide for the financing of administering sections 2 and 4 of this act as provided in this section of the act.  The section also reflects amendment to Conn. Gen. Stat. § 16-50i.

Public Act No. 04-246

An Act Concerning Electric Transmission Line Siting Criteria.

Section One of this Act, effective from passage and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, amends Conn. Gen. Stat. § 16-50l(a), as amended by section 4 of Public Act 03-140, to reflect amendment to Conn. Gen. Stat. § 16-50i and to require that a Siting Council application include, a map showing residential areas, private or public schools, licensed child day care facilities, licensed youth camps and public playgrounds, and an assessment of the impact of any electromagnetic fields to be produced by the proposed transmission line.

Section Two of this Act, effective October 1, 2004 and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, amends Conn. Gen. Stat. § 16-50l(a), as amended by section 5 of Public Act 03-140 and sections 1 and 11 of this Act, by adding two provisions: (i) that on or after December 1, 2004, the filing of an application pursuant to subdivision (1) of this subsection shall initiate the request-for-proposal process, except for an application for a facility described in subdivision (5) or (6) of subsection (a) of section 16-50i; and (ii) an entity that has submitted a proposal pursuant to the request-for-proposal process may, within a certain period of time, initiate a certification proceeding by filing an application and paying a filing fee and municipal fee.  This Section also requires an assessment of electromagnetic field impacts that will be produced by the proposed line.

Section Three of this Act, effective from passage and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, amends Conn. Gen. Stat. § 16-50p(a), as amended by section 10 of Public Act 03-140, section 6 of Public Act 03-221 and section 120 of Public Act 03-278, to reflect amendments to Conn. Gen. Stat. §§ 16-50i and 22-26cc and to require the Siting Council to include electromagnetic fields in its consideration of significant adverse effects, to reflect that feasible and prudent alternatives may be provided by intervenors as well as parties and to require that overhead portions of transmission lines are consistent with the Siting Council’s standards, including, but not limited to, the Siting Council’s best management practices for electric and magnetic fields for electric transmission lines and are contained within an area that provides a buffer zone that protects the public health and safety, as determined by the Siting Council, taking into consideration, among other things, residential areas, private or public schools, licensed child day care facilities, licensed youth camps or public playgrounds adjacent to the proposed route of the overhead portions of the proposed line and the level of the voltage of the overhead portions and any existing overhead transmission lines on the proposed route.  At a minimum, the existing right-of-way shall serve as the buffer zone.

Section Four of this Act, effective October 1, 2004, supersedes Section Three of this Act, which amended Conn. Gen. Stat. § 16-50p(a), and is applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003 , for which the Siting Council has not rendered a decision upon the record before the effective date of this section.  This Section changes the provisions governing the time by which the Council must render certain decisions.  It also deletes references to “reasonable and prudent alternatives,” instead adding the requirement that, in the case of an application that was heard under a consolidated hearing process with other applications that were common to a request-for-proposal, the facility proposed in the subject application represent the most appropriate alternative among such applications.  In addition, this Section, in conjunction with Section 9 of this Act, shifts the requirement that agreements entered into between the applicant and others be part of the record of the proceedings and available for public inspection and that the full text of any such agreement be filed with the Council prior to its decision, to Conn. Gen. Stat. § 16-50o, where its new location makes clear that it applies to all certification proceedings before the Council.  (The original location of this provision made its provision applicable to transmission lines, but not to other facilities.)

Section Five of this Act, effective from passage and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, amends Conn. Gen. Stat. § 16-50p(c), as amended by section 12 of Public Act 03-140 and section 1 of Public Act 03-248, to reflect amendments to Conn. Gen. Stat. § 16-50i and deletes certain requirements for the granting of a certificate for a facility described in subdivision (3) of subsection (a) of section 16-50i, as amended.  These requirements are now found in Conn. Gen. Stat § 16-50p(a), as amended.

Section Six of this Act, effective October 1, 2004, supersedes Section Five of this Act on that date and is applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section.  It amends Conn. Gen. Stat. § 16-50p(c) (1) and (2), as amended by section 13 of Public Act 03-140, to reflect amendments to Conn. Gen. Stat. § 16-50i.  It is essentially identical to subdivisions (c) (1) and (2) of Section Five of this Act except that it deletes references to “feasible and prudent alternatives.”  It also provides that a public need exists if a facility is necessary for the reliability of the electric power supply of the state.

Section Seven of this Act, effective from passage and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, amends Conn. Gen. Stat. § 16-50p, as amended by section 10 of Public Act 03-140, section 6 of Public Act 03-221 and section 120 of Public Act 03-278, by adding a new subsection (h) that provides that for a facility described in subdivision (1) of subsection (a) of Conn. Gen. Stat. § 16-50i, as amended, with a capacity of 345 kilovolts or greater, there shall be a presumption that a proposal to place the overhead portions, if any, of such facility adjacent to residential areas, private or public schools, licensed child day care facilities, licensed youth camps or public playgrounds is inconsistent with the purposes of this chapter.  An applicant may rebut this presumption by demonstrating to the Council that it will be technologically infeasible to bury the facility.  In determining such infeasibility, the Council shall consider the effect of burying the facility on the reliability of the electric transmission system of the state.

Section Eight of this Act, effective from passage and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, amends Conn. Gen. Stat. § 16-50o to provide that for an application for a facility described in subdivision (1) of subsection (a) of section 16-50i [an electric transmission line], as amended, the Council shall administratively notice completed and ongoing scientific and medical research on electromagnetic fields.

Section Nine of this Act, effective October 1, 2004 and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003 , supercedes Section Eight of this Act and adds the requirement that an applicant must submit into the record the full text of the terms of any agreement, and a statement of any consideration therefore, if not contained in such agreement, entered into by the applicant and any party to the certification proceeding, or any third party, in connection with the construction or operation of the facility, which requirement was moved from Conn. Gen. Stat. § 16-50p to Conn. Gen. Stat. § 16-50o, where it now clearly applies to all Council-certificated facilities.

Section Ten of this Act, effective from passage and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, amends Conn. Gen. Stat. § 16-50t and provides that the Council shall adopt and may revise, as the Council deems necessary, standards for best management practices for electric and magnetic fields for electric transmission lines.  Such standards shall be based on the latest completed and ongoing scientific and medical research on electromagnetic fields and shall require individual, project-specific assessments of electromagnetic fields, taking into consideration design techniques including, but not limited to, compact spacing, optimum phasing of conductors, and applicable and appropriate new field management technologies.   Such standards shall not be regulations for purposes of chapter 54.

Section Eleven of this Act, effective from passage and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, is new.  It provides that if legislation adopted on or after January 1, 2004 results in the reconfiguration or burial of a proposed facility described in subdivision (1) of subsection (a) of Conn. Gen. Stat. § 16-50i [an electric transmission line], all prudent costs incurred by an electric distribution company, as defined in Conn. Gen. Stat. § 16-1, as amended, associated with the reconfiguration or burial shall be deemed to be reasonable pursuant to Conn. Gen. Stat. §§ 16-19 and 16-19e and shall be recovered by the electric distribution company in its rates.

Section Twelve of this Act, effective from passage and applicable to applications for a certificate of environmental compatibility and public need originally filed on or after October 1, 2003, for which the Siting Council has not rendered a decision upon the record before the effective date of this section, is new.  It provides that not later than January 1, 2005, the Siting Council shall, in accordance with Conn. Gen. Stat. § 11-4a, submit a report to the joint standing committee of the General Assembly having cognizance of matters relating to energy and the environment, which report shall contain the Council’s most recent version of its standards for best management practices for electric and magnetic fields for electric transmission lines and a description of the methodology used in selecting such standards.